Desmond Rutledge considers the Advocate General’s Opinion (C-308/14) on the EU Commission’s action against the United Kingdom’s use of the right to reside test

The origins of the Commission’s action against the UK

In European Commission v United Kingdom of Great Britain and Northern Ireland (Case C‑308/14), Advocate General Cruz Villalon (“AG”) was asked to consider an action brought by the European Commission against the United Kingdom.

The Commission had received many complaints from nationals of other Member States who were resident in the United Kingdom (“UK”), stating that the competent UK authorities had refused their claims for certain social benefits because they had no right of residence in that Member State. Continue reading →

Desmond Rutledge examines the recent decision in Alimanovic (C-67/14) which holds that it is lawful for a Member State to restrict the period a former worker from another Member State can access benefits upon becoming involuntarily unemployed based on Dano (C-333/12).

Introduction

The landmark case of Dano v Jobcenter Leipzig (C-333/12), in which the Court established that Member States may refuse to grant social assistance to EU citizens who enter their territory without intending to find a job and without being able to support themselves by their own means. The question that arose in Jobcenter Berlin Neukölln v Alimanovic(C-67/14) is whether, and to what extent, this principle applies in the case of an EU citizen who is a former worker in a Member State of which s/he is not a national, who, after becoming unemployed, applies for subsistence benefits in the host State. Continue reading →

It is difficult to know where to begin to respond to Lord Sumption’s unenlightened comments about gender inequality in the legal profession reported in the Evening Standard on Monday 21 September 2015. There is nothing in his reported comments, however many times you read them, to explain the Supreme Court Office’s attempt at justification: “Some of Lord Sumption’s comments appear to have been misunderstood”. Since they do not suggest that he has at any stage been misquoted, let us consider just one full and direct quote: “The Bar and the solicitors’ profession are incredibly demanding in the hours of work and the working conditions are frankly appalling. There are more women than men who are not prepared to put up with that. As a lifestyle choice, it’s very hard to quarrel with it, but you have to face the consequence which is that the top of the legal profession has fewer women in it than the profession overall does.”Continue reading →

Desmond Rutledge reviews the prospects of the bedroom tax litigation succeeding in the light of the recent Supreme Court judgment in the household benefit cap case.

Welfare Benefits and Human Rights

The importance of social security is recognised in a range of international instruments. A right to social security was adopted in the UN Declaration of Human Rights in 1948 (art 22) and was subsequently enshrined in the International Covenant on Economic, Social and Cultural Rights in 1966 (ICESCR) as a right of “everyone” (art 9). The ICESCR also makes clear that circumstances where an individual is permitted to become destitute would be in breach of the right to an adequate standard of living, which includes adequate food, clothing and housing (art 11). Continue reading →

Marc Willers QC explores the hate speech targeting Roma, Gypsies and Travellers and the power to prosecute perpetrators for incitement to racial hatred.

On 27 January 2015 we commemorated the 70th anniversary of the day when Soviet troops liberated the Nazi death camp at Auschwitz-Birkenau. Quite rightly we reflected upon the terrible fact that the Nazis murdered 6 million Jews in the Holocaust. Yet there was little mention of the hundreds of thousands of Romani Gypsy and Sinti[1] people that were also murdered by the Nazis during World War II in what has become known as the Porrajmos (the ‘Devouring’). Continue reading →

Marc Willers QC explores the recent High Court judgment in which it was found that the conduct of Eric Pickles, the Secretary of State for Communities and Local Government, constituted indirect discrimination against Romany Gypsies and Irish Travellers.

Meeting the accommodation needs of Gypsies and Travellers should be relatively simple, but it has always been a contentious political issue because of widespread prejudice amongst the settled population and nimbyism. Planning permission is required for use of land as a caravan site and permission for sites in the Green Belt will only be granted in very special circumstances. Continue reading →

Speaking generally, a First-tier Tribunal (‘FtT’) has a wide discretion when making case management decisions, such as whether to adjourn, so long as it has regard to the overriding objective of dealing with cases fairly and justly (Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Regulations 2008, SI No 2685, rule 2(1)). There is no specific definition in the Rules as to what ‘justly and fairly’ means. However, rule 2(1) is informed by the common law rules on natural justice and the right to a fair hearing enshrined in article 6(1) of the ECHR. In R (MM & DM) v Secretary of State for Work and Pensions [2013] EWCA Civ 1565, the Court of Appeal upheld a finding that claimants with mental health problems suffer a ‘substantial disadvantage’ within the meaning of the Equality Act 2010, s.20(3), compared to other claimants in the assessment of their eligibility to Employment and Support Allowance. The substantial disadvantage point and how it was taken in into account by the Rules was at the heart of the legal challenge described below. Continue reading →